Williams v The The Queen

[2022] NSWCCA 15

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Williams v R [2022] NSWCCA 15

Hearing dates:

22 October 2021

Date of orders:

9 February 2022

Decision date:

09 February 2022

Before:

Johnson J at [1];
Rothman J at [2];
Hamill J at [199]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The sentence imposed on the Applicant, Tyler Williams, by the District Court on 4 October 2019, be quashed and in lieu thereof the Applicant, Tyler Williams, be sentenced to a non-parole period of 3 years, commencing 28 September 2019 and concluding on 27 September 2022, with the remainder of term of 2 years, concluding 27 September 2024. The Applicant is first eligible for release on parole on 27 September 2022.

Catchwords:

CRIME – appeal – objective seriousness – whether cause of injury by applicant open on the evidence – natural justice – effect of mental condition and deprivation and environment of abuse during youth – normalisation of violence – appeal granted on so some grounds – resentencing

Legislation Cited:

Crimes Act 1900 (NSW), s 97(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(g)

Criminal Procedure Act 1986 (NSW), s 95

Cases Cited:

Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kennedy v R [2010] NSWCCA 260

Knight v R [2010] NSWCCA 51

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75

R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140

R v Harris [2011] NSWCCA 105

R v Hemsley [2004] NSWCCA 228

R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

The Queen v de Simoni (1981) 147 CLR 383; [1981] HCA 31

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Tyler Samuel Williams (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr G Ramage QC (Applicant)
Ms C Gleeson (Respondent)

Solicitors:
Jeffreys Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00095388

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

04 October 2019

Before:

Baly SC DCJ

File Number(s):

2018/00095388

Judgment

1. JOHNSON J: I agree with Rothman J.

2. ROTHMAN J: On 25 March 2018, the Applicant, Tyler Samuel Williams, robbed a Service Station in South Casino. The Applicant pleaded guilty to the offence of robbery in company on 24 June 2019, which was the week that the matter was listed for trial. However, the Applicant had initially been charged with armed robbery with wounding and the robbery in company charge and the plea to the robbery in company was accepted in full satisfaction of the charge preferred initially.

3. The learned sentencing judge sentenced the Applicant to a term of imprisonment of 6 years, including a non-parole period of 3 years and 10 months, commencing 28 September 2019. Her Honour found special circumstances. The Applicant will be first eligible for release on parole on 27 July 2023 and the head sentence will expire on 27 September 2025.

4. The Applicant seeks leave to appeal the sentence imposed upon him and, if leave be granted, appeals the sentence. Both the application for leave to appeal and the appeal itself were heard concurrently.

Grounds of Appeal

5. The Applicant raises five grounds of appeal. They are in the following terms:

Ground 1: the sentencing judge erred in her assessment of objective seriousness;

Ground 2: the Applicant was denied due process in a finding that he caused physical injury and the weight that attached to that finding;

Ground 3: the sentencing judge erred in failing to determine how the mental condition of the Applicant should be reflected in his sentence;

Ground 4: the sentencing judge erred in failing to grant the offender the full 25% utilitarian benefit for his plea; and

Ground 5: manifest excess.

Facts

6. As a result of the plea and the negotiations between the Crown and the Applicant, facts were agreed and contained in a statement of Agreed Facts on Sentence (hereinafter “Agreed Facts”). ^[1] The facts were summarised and/or recited by her Honour the sentencing judge and can be summarised briefly.

   1. Appeal Book, p 122 and following.

7. On the evening of 24 March 2018, the Applicant and four co-offenders, DW, Tyrone Williams (hereinafter “Tyrone” or “the Applicant’s brother”), TC and Leonard Baker, attended a party in Casino, NSW. While at the party, the Applicant and the co-accused made plans to commit an armed robbery at the Liberty Service Station located on Centre Street, Casino.

8. The Applicant and the co-accused were captured on CCTV footage approaching the Service Station, with each of Tyrone and the Applicant holding a long metal pole. The victim, Mr Kenneth Whitton, who was 61 years of age, arrived to open the Service Station at 6:55 AM.

9. After the victim opened the store, the Applicant, DW and Tyrone rushed into the store. The CCTV footage shows that the Applicant had dropped the metal pole that he was carrying and was no longer armed with his metal pole or at all. His brother, however, remained armed. ^[2]

   2. Appeal Book, p 123.

10. The victim retreated to the service counter. Each of the offenders demanded cash from the victim and threatened him with the metal pole. The victim, Mr Whitton, was punched by the Applicant and attacked by DW and Tyrone. A struggle between the victim and two of the co-offenders ensued.

11. While the struggle occurred, the Applicant grabbed the money from the till. DW produced a knife and made a number of slashing motions at Mr Whitton’s face. Mr Whitton received a significant laceration to his face.

12. Mr Whitton wrestled control of the metal pole from Tyrone; and Tyrone and DW ran from the store. The Applicant continued to take money from the till. The victim then chased the offender out of the store.

13. The Applicant, Tyrone and DW ran down a lane between the store and neighbouring building before returning to a private residence, where they changed their clothes. Leonard Baker and TC, who had been parked in close proximity to the Service Station, with the car engine running, drove to the private residence. Subsequently, all of the offenders drove to Grafton and other locations, before going to Coraki, where they separated.

14. The Applicant’s plea of guilty was accepted on the basis that he was unaware that DW had the knife that he used during the robbery.

Submissions

Ground 1

15. The Applicant’s submissions in relation to this Ground are twofold:

1. First, it is submitted that her Honour took into account the presence of two weapons, being the metal pole and the knife, in aggravating the offence for which the Applicant was sentenced. This was despite the Crown agreeing, and the Agreed Facts expressly stating, that the Applicant was only aware of the metal pole and was unaware of the knife; and

2. Although there was only a limited degree of planning as to the robbery, her Honour still used this as a matter adverse to the Applicant, taking the Applicant’s sentence outside the R v Henry ^[3] guidelines.

   3. R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111.

16. The Applicant’s submissions note that the sentencing judge sentenced the Applicant by comparison with or application of the guidelines adumbrated by the Court in R v Henry. Her Honour determined that the offence was significantly more serious than the typical Henry offence and fell outside the guidelines of that case.

17. Further, the Applicant submitted that, contrary to this finding, there was material which directly applied to a very important Henry guideline, which the sentencing judge did not mention, refer to or apparently consider in reaching her determination. ^[4] The crux of the Applicant’s submission on this Ground is that, although the Agreed Facts made clear that the Applicant was only aware of the existence of one weapon, being the metal pole held by Tyrone, the sentencing judge made comments in her Remarks on Sentence that implied he was aware of two weapons, being the pole and the knife.

    4. Applicant’s Written Submissions, at [2].

18. In that submission, the Applicant points to comments where her Honour stated that “the victim faced three offenders, two of whom were armed, and not just two” and “the offence is also aggravated by the use of weapons”. In that passage, her Honour deals with the victim facing three offenders, two of whom were armed and then refers to more than two as being armed.

19. At the time that the victim faced the offenders, only two were armed and, in relation to one of them, the Applicant was unaware that his co-offender had been armed with a knife or at all. Her Honour described it, in that context, as a “very serious example of an offence of its kind”.

20. Her Honour then dealt with the role of each of the offenders and, in relation to the Applicant noted that he, with his brother, played a greater role than the offender Leonard Baker. Her Honour came to the conclusion that she could not find, beyond reasonable doubt, that Tyler Williams, the Applicant, was the leader of the group, which had been the submission of the Crown.

21. Nevertheless, her Honour took the view that the Applicant played a very significant role. Her Honour concluded that the Applicant struck the victim to his head, causing injury; and played the very important role of stealing the money. As part of the process of dealing with the individual offenders, the second comment, namely that the offence was aggravated by the use of weapons, was made, which, given the use of the plural, can only be a reference to the pole and the knife.

22. Further, in relation to objective seriousness, the Applicant submits that there was not a significant degree of planning and that the evidence pointed to a plan having been hatched at the party, late at night or early in the morning, only hours before the robbery occurred. Although the sentencing judge expressed the view that the degree of planning did not extend to being an aggravating factor, the submission is made by the Applicant that her Honour then used her view of the degree of planning as a matter adverse to the Applicant and to take the sentence to be imposed upon the Applicant to a level that was beyond that envisaged by the Henry guideline.

23. In its submissions, the Crown emphasised that the Court has repeatedly taken the view that determination of the objective seriousness of an offence falls within the discretion of the sentencing judge. The Crown submits that no error has been disclosed in determining that the offence in question fell outside the sentence range contemplated in the Henry guideline, as it was an offence that was more serious than the typical case enunciated in that judgment.

24. The Crown submits that the distinction upon which the Applicant relies between the type of weapon used or referred to in the guideline judgment and the pole used by Tyrone in this offence is misplaced. The pole is a weapon within the category of weapon that is capable of killing or inflicting serious injury. ^[5]

    5. Crown’s Written Submissions, at [37].

25. The Crown refers, in its written submissions, to the express disavowal by the learned sentencing judge to consideration of the use of the knife in sentencing the Applicant. The precise quote of her Honour was to the following effect:

“The facts state that the pleas are on the basis that the offenders were not aware that [DW] had a knife, which was used by him. The offenders are, accordingly, not charged with robbery with wounding, and are not to be held responsible for the actions of the person [DW], who used the knife on the victim, or the consequences, namely, the laceration. Each of the offenders is responsible for all of what occurred during the robbery in company to which they have pleaded guilty. This was a joint criminal enterprise and, accordingly, each is equally liable for what occurred during the robbery. The moral culpability of each offender is a different matter. It is to be determined, at least in part, by reference to the role that each played in the commission of the offence.”

26. Further, the Crown submits that a reference to weapons, in the plural, or to more than one of the offenders being armed, should not be taken to be a reference to the knife. Rather, it is more likely to be a reference to the fact that more than one pole was brought to the robbery by the offenders; the second being held by the Applicant as the offenders approached the Service Station. ^[6]

    6. Crown’s Written Submissions, at [40].

27. As to the absence of significant planning, the Crown submits that that the sentencing judge set out detailed reasoning as to why she concluded that the planning was “more than limited” and therefore beyond the criteria set out in Henry. The finding of more than a limited degree of planning was, according to the Crown, plainly open to the sentencing judge and was supported by the full weight of the evidence.

28. Lastly, the Crown submits, on this ground of appeal, that the most significant factor in placing the seriousness of the offence outside the typical case identified in the guidelines in Henry was the use of actual violence against the victim and refers, in particular, to the Remarks on Sentence. ^[7] The passage to which the Crown refers in the submission that the actual violence was the most significant factor does not, expressly, refer to the use of actual violence being the most significant factor.

    7. Appeal Book, p 10; Remarks on Sentence, p 5.

29. Her Honour agreed with the observations of one of the sentencing judges previously in relation to these offences that it was “inexplicable” for there to be a physical attack on the victim, particularly given the purpose to take cash, and the fact that the victim was outnumbered and defenceless. Nevertheless, that factor, being the use of actual violence, was the second of four factors to which her Honour referred, without ascribing to any one of them greater or lesser significance. The other factors were the aggravation that the offence was committed both in company and armed; that there was more than a limited degree of planning; and that the Applicant was not young.

30. As to the submission by the Crown that the reference by her Honour to two of the offenders being armed was a reference to the fact that two of them brought a pole to the crime scene does not withstand scrutiny. Her Honour’s comment related to that which the victim faced. By the time the offenders entered the Service Station and faced the victim, to the knowledge of the Applicant, only one of them was armed and the victim facing two of them armed must be a reference to the knife. Otherwise, Tyrone was armed with a metal pole.

Ground 2: The finding that the Applicant caused physical injury

31. The Applicant submits that the finding by her Honour, namely that the Applicant, by punching the victim, caused physical injury, was made without due process and was not open on the evidence. There can be little doubt that the victim was caused injury. The finding with which the Applicant takes issue is that which ascribes to the Applicant the action of striking the victim to his head “causing injury”.

32. The Applicant submits that this finding, which is adverse to the Applicant, was not open on the evidence for a number of reasons. First, while there is no contest that the Applicant hit the victim, it is said that there is no evidence that the Applicant’s strike of the victim caused any injury to the victim.

33. Secondly, the Agreed Facts refer to a “scuffle”, which took place between the victim, Tyrone and the co-offender DW. The Applicant was not involved in that “scuffle”.

34. Thirdly, the Applicant was not charged with the aggravated offence. Nor was the Applicant charged with assault occasioning actual bodily harm. As a consequence, the Applicant has been sentenced on a basis that is not available on the evidence. Nor is it a matter for which he has been charged. The Applicant submits that this is a matter for which the Applicant has not been found guilty.

35. Fourthly, the allegation that the Applicant caused injury to the victim was not raised either in the Crown’s written or oral submissions. Nor was it raised in the cross-examination of the Applicant, who was the only offender who gave evidence at sentencing. Moreover, it was not raised with Counsel by the sentencing judge.

36. The Applicant relies upon the comment of her Honour ^[8] in which her Honour said:

“I emphasise, nevertheless, that the harm done to [the victim] is a sentencing factor, pursuant to section 3 of the Crimes (Sentencing Procedure) Act, that will attract considerable weight.”

8. Appeal Book, pp 13-14; Remarks on Sentence, pp 8-9.

37. However, the foregoing comment was made in the context of the sentencing judge rejecting the Crown submission that the emotional harm was substantial. There was no expert evidence to the effect that the psychological or emotional harm was beyond that which might otherwise be expected of the offence and therefore the sentencing judge said it could not be used as an aggravating factor pursuant to the terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

38. The Crown submits that the sentencing judge had open to her a finding that the Applicant’s punch caused injury to the victim because:

1. the Agreed Facts were to the effect that the victim suffered multiple injuries, including bruises and grazes to his face;

2. the CCTV footage of the robbery shows the Applicant punching the victim twice in quick succession;

3. Exhibit B was the Victim Impact Statement of Mr Whitton which corroborated the injury;

4. the Applicant admitted that he threw the punch but sought to minimise it in a manner inconsistent with that which is otherwise shown on the CCTV footage and which was rejected by the sentencing judge.

39. The Crown submits there is no error in the finding by the sentencing judge and the finding was plainly open to her.

Ground 3: Non-use of mental condition

40. It is conceded by the Crown that the submission of the Applicant that the Applicant met the criteria for Post-Traumatic Stress Disorder (hereinafter “PTSD”) and Major Depressive Disorder was uncontested. The Applicant submits that these mental problems were to be considered in the context of Bugmy issues. ^[9]

    9. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

41. The issues upon which the Applicant relies included a deprived childhood as an Aboriginal person growing up on the Box Ridge Reserve. This involved exposure as a child to family trauma, including violence towards the Applicant’s mother and the Applicant; alcoholism; and other violence, including his uncle being murdered.

42. The Applicant submits that the sentencing judge made no determination as to whether and to what extent the Applicant’s mental conditions reduced his moral culpability for his offending. It is submitted that his mental health problems were highly relevant to his moral culpability and a determination of the offender’s moral culpability should have been an essential part of the sentencing exercise.

43. Apart from the concession by the Crown that the Applicant’s mental condition and background were uncontested and were accepted by the sentencing judge, ^[10] the Crown submits that her Honour expressly referred to Bugmy and expressly stated that there would be a diminution in moral culpability as a result of the application of those principles. ^[11] The sentencing judge also referred to the judgments in Muldrock ^[12] and De La Rosa. ^[13] The learned sentencing judge, after referring to each case, then recited a passage from the judgment of McClellan CJ at CL. ^[14]

    10. Appeal Book, pp 27-29; Remarks on Sentence, pp 22-24.

    11. Appeal Book, p 29; Remarks on Sentence, p 24(8).

    12. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

    13. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

    14. Appeal Book, p 24; Remarks on Sentence, p 19, citing De La Rosa at [177] (McClellan CJ at CL).

40. The Crown submits that it is evident from the whole of the Remarks on Sentence that the sentencing judge reduced the Applicant’s moral culpability by reason of his mental condition; his disadvantaged background; and his evidence of remorse. The Crown also relies upon the fact that the Remarks on Sentence were delivered Ex Tempore, which I take to mean orally, as the Remarks on Sentence were delivered four days after the proceedings, but, it seems, without a fully prepared text.

Ground 4: Level of discount for utilitarian plea of guilty

45. The sentencing judge allowed 20% reduction for both the Applicant and his co-accused brother, Tyrone. Her Honour provided a reason for the rejection of the full amount. ^[15] After referring to the submission on behalf of the Applicant that the maximum available discount should be provided, her Honour said:

“It is my view that the offenders could have entered their pleas to robbery in company, irrespective of the Crown’s approach, and the fact is that the pleas were not made until a later stage. I intend to afford a discount of twenty per cent to each of Messrs Williams on account of the utilitarian value of their pleas.” ^[16]

15. Appeal Book, p 7; Remarks on Sentence, p 2.

16. Ibid.

46. The Applicant also relied, before the sentencing judge, on correspondence between the Applicant’s solicitor and the Crown offering to plead at an earlier time than the plea was entered.

47. The Crown relies upon the fact that the plea was entered in the District Court in the week of the trial and the offer to plead was on 9 December 2018, some nine months after the Applicant was charged. It was not, on the Crown’s submission, as a consequence of the foregoing, an offer at the first available opportunity to which the Applicant adhered.

48. The Crown relies upon the reasons provided by the sentencing judge and the Applicant always had the capacity to plead formally to the alternative count at an earlier time.

Ground 5: Manifest excess

49. The Applicant’s submissions on manifest excess rest on two different bases. First, the Applicant relies upon statistics and comparable cases, which, it is said, demonstrate a manifestly excessive sentence. Secondly, the Applicant submits that the sentence is manifestly excessive in light of the subjective findings made by her Honour.

50. It is submitted that the sentence is “unreasonable or plainly unjust”. ^[17] Manifest excess is a conclusion that is usually plainly apparent and does not depend upon the identification of specific error.

    17. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.

51. As this Court and the High Court have emphasised, statistics can be misleading. Further, the pattern of sentencing that has occurred in relation to past offences establishes only the pattern of sentencing; it may or may not establish a range of sentences that are available for the offence and the offender.

52. More often than not, if not always, no two offences and no two offenders are identical. As a consequence, the sentence to be imposed must be one that reflects the particular circumstances of the offence and the offender and seeks to achieve the purposes of sentencing that have been oft recited.

53. The Crown, in its submissions, relies upon the limited utility to be gained from the use of sentencing statistics and comparable cases. Sentencing is not an arithmetic exercise. Nor is it merely the application of statistical averages.

54. Secondly, the Crown submits that the statistics that have been presented rely upon sentences imposed in relation to a plea to robbery in company and do not make a comparison with armed robbery. Thirdly, the guideline delivered by the Court in Henry provides a range of sentences in the typical case of between 4 and 5 years and the sentencing judge found that the offending in this case was significantly more serious than that which formed the basis of the range for the guideline.

55. The Crown submits that the Applicant enjoyed the full benefit of his subjective case in the consideration of the learned sentencing judge. Further, the Crown submits that the circumstances pertaining to the Applicant do not justify a further reduction in sentence in circumstances where all of the matters relied upon on the Applicant’s submissions were taken into account by the learned sentencing judge.

Remarks on Sentence

56. To some extent the structure of her Honour’s Remarks on Sentence can be gleaned from the foregoing summary of the submissions of the parties on the grounds of appeal. Her Honour was dealing with each of the co-offenders (except DW) and was required to impose a sentence on each of them. The proceedings on sentence occurred on 30 September 2019 and the Remarks were delivered, and the sentence imposed, on 4 October 2019 in Lismore.

57. First, her Honour set out the charges; the plea; the fact of the Crown acceptance of the plea in full satisfaction of the Indictment; the timing of each of the pleas; and the sentence imposed upon the fourth co-offender (DW). Her Honour then set out or summarised the Agreed Facts.

58. In the course of setting out the Agreed Facts, her Honour said:

“The facts state that the pleas are on the basis that the offenders were not aware that [DW] had a knife, which was used by him. The offenders are, accordingly, not charged with robbery with wounding, and are not to be held responsible for the actions of the person [DW], who used the knife on the victim, or the consequences, namely, the laceration. Each of the offenders is responsible for all of what occurred during the robbery in company to which they have pleaded guilty. This was a joint criminal enterprise and, accordingly, each is equally liable for what occurred during the robbery. The moral culpability of each offender is a different matter. It is to be determined, at least in part, by reference to the role that each played in the commission of the offence. The guideline judgment in R v Henry … has application. It is to be noted that it is a guideline, and does not in any way dictate the appropriate sentences.”^[18]

18. Appeal Book, pp 9-10; Remarks on Sentence, pp 4-5 - the reference to R v Henry is R v Henry (1999) 46 NSWLR 346.

59. Her Honour then referred to the guideline judgment and the following aggravating features: the offenders were both armed and in company; actual violence was used on the victim; and the physical attack upon the victim was inexplicable, given the offenders’ intention to confine the undertaking to robbing and the number of persons involved in relation to one victim who was defenceless.

60. Her Honour also dealt with the issue of planning and concluded that there was “more than a limited degree of planning” and referred to: the downplaying of the planning by the offenders; that they had discussed and planned the robbery; the target of the robbery was identified; the offenders were armed; the offenders disguised themselves by covering their heads; they attended the premises prior to its opening; and they were at the ready and able to move as soon as the door opened. Her Honour also concluded that each of the offenders had clearly assigned roles and referred to the circumstance that a car was parked, with the engine running, in order to effect the getaway.

61. Her Honour referred to the fact that the plan was hatched not long before the offence, but determined that this circumstance did not detract from her Honour’s assessment that there was more than limited planning. Her Honour noted that the degree of planning is not, in and of itself, an aggravating factor, but it is a factor, according to her Honour’s assessment, that distinguishes the offence from the Henry guideline or the factual basis of the Henry guideline.

62. A further distinguishing factor from the Henry guideline was, relevantly, according to her Honour, that the Applicant was not young, and her Honour determined that the offence here is more serious than the “typical” Henry offence. Her Honour determined that it was “significantly more serious and falls outside the guideline”.

63. Her Honour then referred to the number of offenders, being five, two of whom being in the car, and then referred to the victim facing “three offenders, two of them were armed, and not just two”. Given that the Applicant had discarded his weapon, the circumstance that the victim faced two or more than two persons armed must include the knife.

64. Nevertheless, her Honour referred to the fact that there were three offenders not two and considered that this was a “very serious example of an offence of its kind”.

65. Her Honour then referred to the role that each offender played, which has been sufficiently outlined in the foregoing. Relevantly, in relation to the Applicant, her Honour referred to him being the only offender who gave evidence in the sentence proceedings. Her Honour referred to the circumstance that the Applicant had smoked ice prior to planning and committing the offence and that this was the first time he had consumed the substance.

66. After referring to an attempt by the Applicant to diminish the violence perpetrated by him by suggesting that he had pushed the victim with an open hand and noting that such a contention was not accepted, her Honour said:

“It is clear that the offender did punch the victim. Having said that, however, I do not find beyond reasonable doubt that [the Applicant] was the leader. In that respect, I am unable to determine whether anyone was the leader. [The Applicant] clearly played a very significant role. He was the person who struck the victim to his head, causing injury. He carried out the important role of stealing the money.” ^[19]

19. Appeal Book, p 12; Remarks on Sentence, p 7.

67. After then referring to the Applicant’s brother and his possession of the pole, her Honour remarked that it was not used on the victim but that its presence was extremely threatening. Her Honour then referred to the Crown’s submission that the emotional harm to the victim was an aggravating factor, which her Honour rejected.

68. Nevertheless, her Honour found that the harm done to the victim is a sentencing factor pursuant to s 3A of the Crimes (Sentencing Procedure) Act. Her Honour accepted that the vulnerability of the victim was an aggravating feature.

69. Her Honour repeated the fact that the offence was “clearly aggravated by the use of weapons” and reference has already been made to the use of the plural in that expression. Her Honour referred to the use of actual violence and referred to the fact that both of those factors have been taken into consideration in considering the objective seriousness of the offence.

70. Her Honour then referred to the subjective circumstances of each of the offenders, commencing with Mr Baker and next dealing with the Applicant’s younger brother. In dealing with the Applicant’s brother, her Honour referred to the reliance being placed upon the decisions in Muldrock, supra, and De La Rosa, supra.

71. Her Honour referred to the submission that the relevant principles are summarised at [177] of De La Rosa and cited that paragraph. After referring to De La Rosa and reciting [177], her Honour said:

“That is not the case here. In the case of [Tyrone], I accept a causal connection between the offending and his intellectual disability. It is a loose and indirect one, in my view. It certainly has meant that he has struggled at school and in other ways, and perhaps fell all too readily into using substances, and then committing crime, but this crime was a planned and violent grab for money. I, like Judge Wells, ^[20] cannot fathom or understand why the offenders, including this offender, acted so violently toward [the victim]. I do not accept that the offender’s intellectual disability was directly causative in the offending. I do accept that the offender’s moral culpability is reduced, marginally, on account of his intellectual disability.” ^[21]

20. A reference to the Remarks on Sentence to the sentencing judge who sentenced the fourth offender.

21. Appeal Book, p 25; Remarks on Sentence, p 20.

72. Reference is then made by her Honour to the applicability of the principles that her Honour described as the “Bugmy principle”. Her Honour considered that the deprivation and disadvantage associated with the Applicant’s brother involved a “consequential diminution in moral culpability”.

73. Her Honour then referred to the subjective circumstances of the Applicant and referred to his age at the time of sentencing and his age at the time that the offence was committed. Her Honour also referred to the fact that the Applicant gave evidence, but took the view that “some of his evidence was not very impressive”. ^[22]

    22. Appeal Book, p 26; Remarks on Sentence, p 21.

74. Her Honour rejected the view that there were exceptional circumstances relating to third-party hardship based on the Applicant being the sole carer for his ailing father, who has terminal bowel cancer. Her Honour remarked that there are a number of other siblings and relatives, who are willing and able to take over the care of the Applicant’s father.

75. In and of itself, such a finding is not inconsistent with the proposition that the Applicant was the sole carer of his father. Nevertheless, her Honour took the view that, as a consequence of the capacity of other siblings and relatives to take over the care, the father will not suffer exceptional hardship and the suffering of exceptional hardship was not a factor that her Honour took into account.

76. Her Honour referred to the criminal history of the Applicant which she described as “significant”. ^[23] The Applicant’s criminal history ^[24] was part of Exhibit A before the sentencing judge.

    23. Appeal Book, p 27; Remarks on Sentence, p 22.

    24. Appeal Book, commencing p 126.

77. The first adult offending occurred, it seems, at 18, involving driving with high range PCA, when the Applicant was not licensed. There are a number of driving offences, including driving whilst disqualified.

78. The first adult offence involving violence was a common assault in 2009. By definition, common assault involves an assault without physical harm, but is still an offence of violence.

79. There was an offence involving the infliction of violence in 2010, when the Applicant was involved in an affray, but it could not have been very serious, given that he was sentenced to imprisonment until the rising of the court.

80. In 2011, the Applicant was sentenced to a suspended sentence for assault occasioning actual bodily harm, which was the offence for which he was sentenced to another suspended sentence in 2015. Prior to 2007, there were some juvenile offences involving violence: a common assault in 2003; and resisting police in 2006.

81. But the only violence that inflicted injury were the two offences of assault occasioning actual bodily harm committed in 2011 and 2015. There are domestic violence offences of stalk and intimidate and contravention of an Apprehended Violence Order, but, otherwise, there are no other serious offences.

82. Otherwise, there are offences, but they are offences of driving whilst unlicensed and like offences, including driving whilst disqualified. It is notorious that in the case of disadvantaged Aboriginal people living in regional and remote areas, often offences of driving whilst disqualified arise as a result of the cancellation of a licence because of an inability to pay parking and/or driving fines.

83. Nevertheless, there is no evidence as to the circumstances that gave rise, initially, to this particular offending relating to unlicensed driving and/or driving whilst disqualified. Since 2015, police and the legislature have taken a different view to the commission of such offences; implementing programmes designed to overcome the causes, being poverty, remote living and the lack of public transport.

84. Later in her Remarks on Sentence, her Honour referred to the Applicant’s record as being “not as bad” as his younger brother’s or the third of the co-offenders with whom her Honour was dealing. ^[25] After referring to the Applicant’s criminal history as significant, her Honour referred to the Applicant’s upbringing and current family circumstances.

    25. Appeal Book, p 31; Remarks on Sentence, p 26.

85. The Applicant was the eldest of six children; he was born and raised at Box Ridge; and was five or six when he left Box Ridge and went to Coraki, where he lived until 11 years of age. He now has a partner, with whom he does not live and who cares for the couple’s children aged six, five and four months.

86. Her Honour referred, as she did with the Applicant’s younger brother, to the loss of their sister, to whom the Applicant still “talks”. Her Honour described the Applicant’s life as a child as “hard”. He was exposed to drugs and alcohol from a young age; money was scarce; and he, too, was the victim of his father’s violence. He was too young to fight back.

87. Her Honour referred to the remorse expressed by the Applicant; that at the time of the offending he had been drinking heavily and, as earlier stated, had used ice for the first time. He expressed the view that he had, previously, wanted to apologise to the victim but was not permitted to do so.

88. Her Honour referred to his heavy use of alcohol in the past, which started as a consequence of his attempt to cope with his sister’s death. He had suicidal thoughts over the death of his sister.

89. The Applicant is not currently medicated for mental health issues from which he suffers, but he has “pulled back” from using alcohol and no longer drinks at all. Her Honour described that latter aspect as “impressive”.

90. Her Honour referred to the report of Andrea Haddock, dated 19 August 2019, ^[26] and said that the concentration of the report was on the Applicant’s exposure to childhood trauma and the witnessing of his father bashing his mother. Her Honour also refers to the fact that the father was violent and abusive towards the Applicant.

    26. Appeal Book, p 257 and following.

91. The Applicant was also, according to her Honour, exposed to alcoholism and other violence as a child and he felt “terrified and helpless”. ^[27] Her Honour referred to the fact that the Applicant had never sought help for his mental health issues but suffered from depressed mood and anxiety and referred to suicidal ideation and four incidents of self-harm, it seems, with full intent to take his own life.

    27. Appeal Book, p 28; Remarks on Sentence, p 23.

92. Her Honour referred to the view expressed by Ms Haddock that the Applicant is suffering “the effects of PTSD and a severe Depressive Episode”. Her Honour referred to the view recited in the report that the Applicant was in a “very bad headspace” in that he had never come to terms with his sister’s death and that he had been suicidal for some time.

93. After referring to the Applicant claiming that he did not intend to hurt the victim, her Honour suggested that the “claim rings hollow, in light of what was done to the victim. Even putting aside what [DW] did, the violence was simply not necessary, in order to steal the money.”

94. Her Honour accepted that the Applicant was remorseful but noted that the remorse was “belated”. Her Honour, as previously stated, suggested the principles enunciated in Bugmy “and other cases” also apply in his case.

95. Her Honour then dealt at some length with the issue of parity between the co-offenders and whether it was appropriate or necessary to distinguish between them. In so doing, her Honour referred to the Applicant’s prospects of rehabilitation as being “guarded … but … he does have some prospects”. ^[28]

    28. Appeal Book, p 30; Remarks on Sentence, p 25.

96. The findings as to prospects of rehabilitation were based, according to her Honour’s assessment, on the fact that the Applicant had ceased drinking alcohol, notwithstanding that he had been in the community on bail, and, during his time on bail, had taken on the responsibility of caring for his father, which involved cleaning him and driving him to appointments, as well as other carer’s duties. Her Honour then found that the Applicant had “good prospects of rehabilitation and, therefore … he is unlikely to reoffend.” ^[29]

    29. Appeal Book, p 30; Remarks on Sentence, p 25.

72. Her Honour then referred to the sentence imposed on DW, who had been charged with and pleaded to the more serious offence of robbery with wounding, carrying a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years. While a 25% discount was applied to the sentence of DW, the starting point for the head sentence was 9 years and 4 months.

73. Her Honour remarked that the length of the sentence for these offenders must obviously be less than that imposed upon DW. In the course of discussion of the respective roles and issues, her Honour stated that the Applicant “played a slightly greater role, but his record is not as bad”. Her Honour then determined that the third of the offenders (Baker) will receive a lesser sentence; and the Applicant’s brother will receive less than the Applicant.

74. Her Honour noted that the sentences must punish each of the offenders adequately. Her Honour sentenced the third offender to a head sentence of 5 years and 8 months’ imprisonment, including a non-parole period of 3 years and 4 months.

75. Her Honour sentenced the Applicant’s brother to a head sentence of 5 years and 8 months imprisonment, including a non-parole period of 3 years and 5 months. As earlier stated, her Honour sentenced the Applicant to a head sentence of 6 years imprisonment, with a non-parole period of 3 years and 10 months.

76. In the case of the Applicant, the head sentence expires on 27 September 2025 and the non-parole period is due to expire on 27 July 2023. Special circumstances were found.

77. Given that the sentence imposed included a 20% reduction for the utilitarian value of the plea of guilty, the starting point for the Applicant’s sentence was 7 years and 6 months and the starting point for the non-parole period was 4 years and 9½ months.

Consideration

103. It is convenient to deal first with Ground 4 of the appeal. On or about 16 October 2018, while proceedings were still before the Local Court, an offer was made to plead to Sequence 2 on the Indictment, namely, that for which the Applicant was ultimately sentenced.

104. While the correspondence relating to the younger brother, Tyrone, is before the Court and was before the learned sentencing judge, it was accepted by the sentencing judge and by the Crown below and reiterated by the Respondent in this appeal that the offers were made by both Tyrone and the Applicant. The sentencing judge indicated it was unnecessary to have further correspondence indicating the offer in relation to the Applicant. It should be noted that the proceedings, having been commenced prior to 30 April 2018, are not governed by the provisions of Div 1A of the Crimes (Sentencing Procedure) Act and it is unnecessary to deal with the effect of those provisions.

105. Further, it is conceded that neither Tyrone nor the Applicant sought to have the complainant available for cross-examination on his statement, even if the matter were to proceed to hearing, although such a concession is not a matter to be taken into account in determining the utilitarian value of the plea. No complaint is made that the sentencing judge did not allow for assistance to authorities.

106. Before the sentencing judge, the Crown conceded that there had been discussions before the committal and confirmed that each of the Applicant and his younger brother offered to plead guilty, before committal, to the offence for which he was ultimately sentenced, being a plea for an offence under s 97(1) of the Crimes Act 1900 (NSW). The Crown also conceded that, at the time, those offers were rejected by the Crown and the Indictment, dated 24 June 2019, then charged both the offence under s 98, which was the subject of the original charge, and the alternative, being the offence under s 97(1) of the Crimes Act.

107. The original charge was amended during the course of the proceedings before the Local Court to insert the alternative to which the Applicant offered to plead. Nevertheless, the offer to plead to the offences under s 97(1) of the Crimes Act was made well before committal.

108. In an exchange with the sentencing judge, her Honour made clear that, while accepting that the offer to plead prior to committal was made and rejected, the plea could have been entered at committal, notwithstanding the rejection of the plea in full satisfaction of the Indictment. This is also the subject of comment in the Remarks on Sentence.

109. Her Honour was correct. However, a formal plea to the alternative creates significant difficulties if it remains on record and is not accepted by the Crown. If the plea were entered before the Local Court to the alternative and the plea of not guilty was maintained in relation to the s 98 offence, then it discloses a tension in the procedures under the Criminal Procedure Act 1986 (NSW).

110. Where both offences are charged, albeit in the alternative, pursuant to the terms of s 95 of the Criminal Procedure Act, unless the plea were to be rejected, the Magistrate must either commit for trial or commit for sentence.

111. Leaving aside a refusal to commit, a Magistrate must commit an accused person for trial for an offence unless the Magistrate accepts a plea of guilty to the offence. If a plea of guilty were offered and accepted by the Magistrate, the Magistrate would be required to commit the offender for sentence and, otherwise, either because the Magistrate has rejected the plea of guilty or because a plea of not guilty has been made, the Magistrate is required to commit the accused person for trial.

112. Of course, at trial, as explained in R v Tailford, ^[30] the provisions of ss 153 and 154 of the Criminal Procedure Act apply, but a plea of guilty to the alternative offence, if offered at arraignment, or for that matter formerly offered in court at the commencement of the trial, is an admission of the basic elements of the alternative offence. As a consequence, if the offer to plead to the alternative offence is made, but rejected by the Crown as in full satisfaction of the Indictment, to offer the plea in court would be to admit a number of the elements of the offence for which the accused is pleading not guilty.

     30. R v Tailford (2021) 288 A Crim R 78; [2021] NSWSC 248.

113. Nothing in the foregoing suggests that such a course is not adopted often, if not more often than not. Nevertheless, an offer to plead to the alternative offence, if not accepted by the Crown in full satisfaction of the Indictment, is ordinarily treated as withdrawn for the purpose of allowing the jury the capacity to reach a verdict on the primary charge or, if not guilty to that, to deliver a verdict to the alternative charge.

114. Last, where, as here, an accused offers to plead to a lesser alternative charge, which offer is not accepted by the Crown, then to treat the plea as a late plea (or a plea at other than the earliest opportunity), only because the plea was not entered at committal or at arraignment, is to prejudice the accused for reserving the right to put the Crown to proof of each of the elements of the more serious offence.

115. The Crown had the capacity to accept the offer to the alternative charge prior to committal and, if the Crown were to have accepted that offer, the plea would have been entered at the earliest opportunity. Even the Crown conceded that the plea was offered early, but not at the earliest opportunity, in that it was offered before committal but not when the charge first came before the Local Court.

116. To treat the offer as not at the earliest opportunity in those circumstances is to give to the Crown the capacity to determine the timing of the plea and the reduction that should be afforded the accused. That situation is exacerbated in the current circumstances, because the offer to have the victim’s witness statement tendered effectively admits the charge for which the Applicant was sentenced.

117. The Applicant submits that the approach of the sentencing judge is “perilously close” to that declared prohibited in Siganto v The Queen. ^[31] The approach of the sentencing judge is not inconsistent with the comments of the High Court in Siganto, but the effect is to reduce the discount for the alternative charge, for which an offer had already been made, because the Applicant declined to admit to elements of the more serious offence.

     31. Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74.

118. Even the provisions of Div 1A of the Crimes (Sentencing Procedure) Act set the earliest opportunity as a time before an offender is committed for trial. The offer to plead was made before the Applicant was committed for trial and the utilitarian value of that plea entitled her Honour to allow to the Applicant the maximum allowable discount for a plea of guilty. However, even though I would have in these circumstances allowed a reduction for the utilitarian value of the plea at 25%, the allowance of 20% is neither unavailable nor outside the range.

119. I would disallow the appeal on the basis of Ground 4.

120. I turn then to consider Grounds 2 and 3 of the Notice of Appeal, being the alleged failure of the sentencing judge to determine how the mental condition of the Applicant should be reflected in his sentence and the conclusion that the Applicant’s conduct caused injury. It is convenient to deal with them together.

121. As already noted, the psychological evidence adduced on behalf of the Applicant in the sentence proceedings was not contested. The opinion expressed by the psychologist was accepted by the Crown and by the sentencing judge. ^[32]

     32. Appeal Book, p 28; Remarks on Sentence, p 23.

122. The learned sentencing judge commented that the report highlights the offender’s exposure to childhood trauma; witnessed his mother being bashed by his father; his father being abusive towards the Applicant; exposure to alcoholism and other violence, including a very violent attack upon his uncle. As a child, the sentencing judge accepted, the Applicant felt terrified and helpless.

123. Further, the Applicant was grief-stricken when his sister died in a motor vehicle accident in which his younger brother, Tyrone, was driving. Over and above the foregoing, shortly thereafter a close friend of the Applicant and the close friend’s partner both died in a motor vehicle accident.

124. The Applicant had never sought help for his mental conditions or issues. He has had suicidal ideation; there were four attempts at self-harm and each with intent to take his own life. The sentencing judge noted that the Applicant meets the criteria for PTSD and Major Depressive Disorder.

125. The sentencing judge then referred to the Applicant’s account of the offence to the psychologist and referred to the Applicant’s claim that he did not intend to hurt the victim. The sentencing judge remarked that the “claim rings hollow, in light of what was done to the victim. Even putting aside what [DW] did, the violence was simply not necessary, in order to steal the money.”

126. The sentencing judge then referred to the existence of remorse and the principles in Bugmy. At no stage did the sentencing judge refer to the effect of psychological issues.

127. The Crown submits that the reference to “Bugmy and other cases” is a reference to the principles in Muldrock and De La Rosa, but, in my view, her Honour was not referring, with that expression, to the principles in either of the latter judgments.

128. Her Honour had earlier referred to the principles in Muldrock and De La Rosa, to which earlier reference has been made; recited a passage from the judgment of McClellan CJ at CL; and then commented that those circumstances were “not the case here”. There was acceptance in the case of Tyrone of a causal connection between the offending and his intellectual disability, but the sentencing judge rejected the application of the principles in Muldrock and De La Rosa as relevant to these offenders.

129. The sentencing judge allowed for the application of the principles outlined by the High Court in Bugmy.

130. In reading the Remarks on Sentence as a whole it seems that her Honour applied the principles in Bugmy but rejected any diminution in moral culpability or reduction in sentence for the principles summarised in Muldrock and De La Rosa. This was an error, given the uncontested evidence of psychiatric disorders.

131. Even if the psychiatric conditions were not causative of the offending, they were relevant to reducing the sentence to be imposed upon the Applicant. ^[33] Of course, it is necessary to ensure that there is no double counting for the same factor. Often the deprivation and exposure to violence and alcoholism in childhood will be the cause of the psychiatric disorder, but not always, and usually not wholly. Nevertheless, the deprivation to which Bugmy refers does not require or necessarily involve psychiatric disorder.

     33. Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 at 175 (Simpson J, with whom Hunt AJA and Rothman J agreed).

132. Failure to take into account the effect of the Applicant’s mental disorder was to confine the sentencing discretion exercised by the sentencing judge unduly. Moreover, the rejection seems to have been based upon the fact that the violence perpetrated in the robbery was “simply not necessary”. ^[34]

     34. Appeal Book, p 29; Remarks on Sentence, p 24.

133. By that, her Honour indicated that the violence perpetrated in the offence was not necessary in order to steal the money and expressly made that point. However, such a proposition, in and of itself, ignores the effect of the mental condition and the normalisation of violence that was said to have been taken into account in considering the principles summarised in Bugmy. These factors cause the Applicant to normalise violence.

134. Further, in large measure, the violence was perpetrated not by the Applicant but by his co-accused. The physical violence perpetrated by the Applicant was confined to one or two punches delivered at the very beginning of the robbery. In my view, Ground 3 has been established and should be upheld.

135. As is clear from the recitation of the Applicant’s grounds and the submissions made in support thereof, the Applicant also submits that the Applicant was denied due process in a finding that he caused physical injury and the weight that attached to that finding. This is Ground 2 of the appeal.

136. As earlier indicated, the Applicant refers to the comment by the sentencing judge, in her Honour’s Remarks, in which she made clear that she found that the Applicant struck the victim and caused injury. The Crown submitted that it was open to the sentencing judge to find that the punch caused injury.

137. On the basis of the CCTV footage of the robbery in Exhibit C, there can be no doubt that the Applicant punched the victim. The first strike at the victim, if it connected, was a glancing blow to the left side of the head and/or shoulder; the second blow was a blow to the right rear of the head and/or ear region by the Applicant’s left hand. It was a blow that struck around the back of the head of the victim, while the victim was facing toward the Applicant and bent over.

138. Otherwise, the scuffle between the victim and the other two offenders involved the other offenders striking, or attempting to strike, the victim with a pole; punching and wrestling with the victim; causing the victim to fall to the floor, where the other two offenders continued to assault the victim. There is no evidence before the Court, nor was there evidence before the sentencing judge, that the two punches delivered by the Applicant caused injury.

139. Of course, the Applicant was engaged in a joint criminal enterprise and is responsible for the conduct of the robbery that was contemplated, but it is wrong to suggest that the evidence discloses that the punch or punches delivered by the Applicant of themselves caused injury the victim, as part of describing the role played by the Applicant. This is a fact utilised against the Applicant and was required to be proved beyond reasonable doubt.

140. The only reference in the Victim Impact Statement to the conduct of the Applicant was to a punch to the head from which the victim staggered back; and the only reference to injury was to the bleeding caused by the knife. The Agreed Facts referred to the laceration, requiring 13 stitches and a number of bruises and grazes to the face, elbows, and knees and scratches to the arm. The Agreed Facts do not attribute any of the injuries to the Applicant’s conduct.

141. Further, the Applicant gave evidence in the proceedings and it was never suggested to him that the punch or punches he delivered caused injury to the victim. The fact of injury being caused by the strike to the victim’s head is not a finding that is available by inference from the CCTV footage and has not been proved beyond reasonable doubt.

142. The major injuries were, as stated, lacerations caused by the knife. The Applicant was unaware of the knife and cannot be held responsible for those injuries. The bruises are consistent with those that could have been perpetrated during the course of the struggle with the other two offenders.

143. The Applicant’s Ground 2 has also been made out. Grounds 2 and 3 of the appeal should be upheld.

144. Next, I deal with Ground 1 of the appeal which cavils with the learned sentencing judge’s assessment of objective seriousness, with particular reference to the comparison with the guideline judgment in Henry. ^[35]

     35. R v Henry, supra.

145. As has been pointed out on a number of occasions, guideline judgments are guidelines not tramlines. In the case of the guideline judgment in Henry, for reasons which are identified in the course of the Reasons for Judgment, the guideline provides a range of sentences for a category of case that is described as “sufficiently common” so as to enable a guideline to be determined. That common case includes:

1. a young offender with no or little criminal history;

2. a weapon like a knife, capable of killing or inflicting serious injury;

3. a limited degree of planning;

4. limited, if any, actual violence but a real threat thereof;

5. victim in a vulnerable position such as a shopkeeper or taxi driver;

6. small amount taken;

7. plea of guilty, the significance of which is limited by a strong Crown case.

146. Later judgments made clear that the plea of guilty to which the foregoing common characteristics referred was a late plea of guilty for which a discount of 10% would be allowed. Further, later cases also included robbery in company in like manner to robbery with a weapon.

147. In the present proceedings, the level of aggregation was associated both with a weapon and that it was perpetrated in company. The company was greater than was necessary for the minimum elements of the offence in that there were more than two people involved in the offence.

148. The weapon to which the sentencing judge was required to have regard was the pole of which the Applicant was aware. The sentencing judge could not take account of the knife, which, as agreed between the Crown and the Applicant, was not known to the Applicant.

149. Liability of the Applicant was based, at least in part, on the joint criminal enterprise that was conducted by all of the accused that participated in the robbery. As a consequence, the Applicant is responsible for the acts of each of the participants. ^[36]

     36. Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75.

150. In this case, the plea and the Agreed Facts expressly referred to the fact that the Applicant was not aware that DW had a knife which was used by him. In those circumstances, sheeting home to the Applicant liability for the use of the knife by DW depends upon proof that the accused knew of the presence of the weapon in question or that the use of the weapon was reasonably within the common purpose. ^[37]

     37. McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37; R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 at 149 (Mathews J, with whom Handley JA and Sully J agreed).

151. In this case, there was no evidence from which it could be inferred that the use of the weapon was within the scope of the common purpose and therefore the use of the knife could not be sheeted home to the Applicant. ^[38] In those circumstances the weapon utilised and for which the Applicant can be held liable is the pole.

     38. Ibid.

146. A pole, in terms of the Henry guidelines, is capable of killing or inflicting serious harm; it is a dangerous weapon, but it is not a prohibited weapon and is less dangerous than a knife and less likely to inflict injury without the application of significant force. In this case, it seems not to have connected with the victim, but, clearly, there was an attempt so to do.

147. As earlier stated in the recitation of the facts, the learned sentencing judge referred to the circumstance that the victim faced two offenders who were armed. In and of itself that statement is correct. The circumstance that the use of the knife was not conduct for which the Applicant was liable did not diminish the effect on the victim. But that effect on the victim could not be a factor in assessing the moral culpability of the Applicant, nor in assessing the objective seriousness of his offence.

148. Moreover, it is also accurate to refer to the offenders being armed or that the offenders “were armed”. Because each of the offenders is liable for the conduct of the other offenders, the offenders, as a group, were armed and it is too fine a distinction to criticise the sentencing judge for referring to that factor.

149. However, if the reference ^[39] to the victim facing “three offenders, two of whom were armed and not just two” were a reference to the proposition that the Applicant was also armed after the Applicant had discarded his pole, then that factor was also not part of the criminal enterprise that was carried out. And it is factually inaccurate.

     39. Appeal Book, p 11; Remarks on Sentence, p 6.

150. Notwithstanding the references to the offenders, in the plural, being armed, the sentencing judge expressly referred to the plea being based upon the Applicant being unaware that DW had a knife that was used by him and that he, and the co-offenders with whom the sentencing judge was then dealing, were not charged with robbery with wounding and were not to be held responsible for the actions of the person DW, nor for the laceration caused by him.

151. In those circumstances, it cannot be suggested that her Honour took into account the use of the knife, the wounding or its repercussions on the victim. It does seem however that the sentencing judge took into account the existence of more than one weapon in the commission of the offence, in circumstances where neither the Applicant nor Tyrone were aware of more than one weapon being taken into the shop.

152. Given the abandonment by the Applicant of his weapon (another pole), the joint criminal enterprise could not be said, to the requisite standard, to involve more than one weapon.

153. Further, the Agreed Facts make clear that the offence was committed with little planning. Such planning as existed occurred at a party either late at night or early in the morning in circumstances where the Applicant, at least, had consumed ice, for the first time. It would seem that the degree of planning utilised for the commission of this offence was limited and did not exceed the degree of planning that would ordinarily be expected in an offence of that kind. ^[40]

     40. Knight v R [2010] NSWCCA 51 at [16] (James J).

154. Nevertheless, the level of planning, although limited, was probably greater than was contemplated by the Henry guideline. Further, the violence that was perpetrated, even ignoring the use of the knife and the laceration, was also a higher level than that ordinarily contemplated by that which was described as forming the basis of the guideline judgment.

155. However, as the judgment in Henry makes clear, there are a number of factors both within the common characteristic and outside them that may mitigate or aggravate the offence in question. ^[41] As already indicated, this Court has made clear that the discount incorporated in the Henry Guideline was 10% for a plea of guilty^[42] and that if one were having regard to the undiscounted range of that set out in Henry, it may be expressed as between approximately 4 years and 5 months and just under 5 years and 7 months. ^[43]

     41. Henry, supra, at [170]

     42. R v Hemsley [2004] NSWCCA 228 at [30].

     43. R v Harris [2011] NSWCCA 105 at [93].

156. The undiscounted sentence imposed upon the Applicant was a head sentence of 7 years and 6 months, which is significantly more severe than the undiscounted rate to which Henry is calculated to refer. The foregoing calculation is based upon adjusting the sentence imposed by her Honour by the 20% discount for the plea of guilty.

157. Notwithstanding the foregoing, this Court has expressed a consistent attitude to a sentencing judge’s assessment of objective seriousness. It has been described as “classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences”; ^[44] and “quintessentially for the sentencing judge”. ^[45]

     44. Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ).

     45. Ibid at [46] (Simpson J).

158. The assessment of objective seriousness is an evaluative process which may be the subject of interference by a court on appeal only on one of the well-known bases to which the High Court referred in House v The King. ^[46] In other words, the assessment must either reflect an identifiable error or manifest error.

     46. House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

159. For the error to be identifiable, the sentencing judge must have acted on a wrong principle; allowed extraneous or irrelevant matters to affect the assessment; mistaken a fact; or failed to take into account material consideration. If such an error is not identifiable, then, for the Court to intervene, manifest error must exist, which requires the Court to consider the outcome of the assessment to be unreasonable or plainly unjust.

160. While I may have come to a different conclusion as to the relative objective seriousness of the offence by this offender, I do not consider that the Applicant has disclosed an identifiable error in the assessment and I do not consider the assessment is unreasonable or plainly unjust. The assessment of her Honour, notwithstanding some minor factual errors, was within her discretion and available to her.

161. As a consequence, I would not uphold the ground of appeal agitated under Ground 1.

162. The last ground of appeal is that the sentence imposed is manifestly excessive. I have determined that Grounds 2 and 3 of the appeal ought to be upheld. As a consequence, it is strictly unnecessary to deal with the ground of manifest excess.

163. On one view, having identified error of the kind that would require this Court to intervene and to resentence, the proposition that the judgment was manifestly excessive, which is a specie of manifest error, is, at best, superfluous. If the sentence is excessive, it is the result of identified error, not manifest or unidentified error.

164. As a consequence of the determination of the grounds of appeal above, it is necessary for the Court to resentence. If the Court, in taking into account all of the matters currently before it, were to come to a view that no lesser sentence is warranted, then, notwithstanding the view expressed as to the grounds of appeal, the appeal would be dismissed.

165. All of the submissions on the ground of manifest excess have otherwise been outlined and are relevant to the task of the Court in re-sentencing. Because manifest excess is a conclusion, it suffices to note that the sentence imposed is within range, although, particularly given the subjective circumstances, would not be lenient.

Resentence

172. It is unnecessary to repeat or summarise the facts, which have been summarised above and were summarised fully by the sentencing judge. The Applicant is responsible as a participant in a joint criminal enterprise for the conduct associated with that common purpose.

173. He is not responsible for the use of the knife and the lacerations caused by it. The use of the knife was beyond the common purpose to which the Applicant had agreed; its possession was unknown to the Applicant; and its use was not contemplated by the Applicant.

174. Further, on the Agreed Facts and on the basis of the viewing of the CCTV footage available to the Court, I am unable to conclude, beyond reasonable doubt, that the Applicant inflicted injury, when he punched the victim. The Applicant is, as stated, responsible for all of the acts within the common purpose to which he was party, but in determining the individual role of the Applicant and his moral culpability and of the objective seriousness of the Applicant’s conduct, I do not take into account the infliction of injury.

175. I take into account all of the matters subject to earlier comment. I consider that the offence, in its entirety, to which the Applicant was a party, involved both robbery in company and with a weapon. Further, the number of persons who entered the shop and assaulted the victim were more than were necessary to give rise to a robbery in company. There were three assailants; not two. These factors aggravate, significantly, the offence in question.

176. I take into account the Henry guideline, which, as earlier stated, calculates for an undiscounted sentence, at a range of imprisonment between 4 years and 5 months and 5 years and 7 months.

177. The Henry circumstance expressly includes the robbery of a shopkeeper and, in my view, while the planning involved in this offence is no greater than is typical of the planning for a robbery of this kind, I do consider the planning to be at a slightly higher level than was contemplated in Henry. I do not consider that the planning involved in the early hours of the morning prior to the offence, in and of itself, took the offence beyond the range in Henry, but overall the offence is beyond that range.

178. I take into account the findings of the sentencing judge not otherwise dealt with in these Reasons in the sentence to be imposed. Further, I take into account that the Applicant suffers from PTSD and a serious Depressive Episode. I consider, in those circumstances, that the Applicant is not an appropriate vehicle for general deterrence, which, while relevant, plays a lesser role in the fixing of any sentence.

179. I also take account of the factors summarised by Simpson J in Kennedy v R,^[47] cited with approval in Bugmy, supra. As explained by the High Court in Bugmy, “the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.” ^[48]

     47. Kennedy v R [2010] NSWCCA 260.

     48. Bugmy, supra, at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

180. The High Court went on to refer to the systemic background of deprivation but made it clear that it was the circumstances of the individual that was relevant, not some general or generic issue affecting persons of Aboriginal descent or identity. Moreover, the principles approved by the High Court in Bugmy apply to all, not to any particular racial group.

181. Nevertheless, the High Court made clear that “a background of that kind may compromise the person’s capacity to mature and learn from experience”^[49] and then said:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (Footnotes omitted.)^[50]

49. Bugmy, supra, at [43].

50. Bugmy, supra, at [44].

182. The circumstances of this offender do not involve an inability to control the violent response to such a degree that the importance of protecting the community from the offender becomes a matter aggravating the sentence to be imposed.

183. The sentencing judge was also provided with an expert article from Psychiatry, Psychology and Law, authored by Andrew Day, Robin Jones, Martin Nakata and Dennis McDermott, entitled “Indigenous Family Violence: An Attempt to Understand the Problems and Inform Appropriate and Effective Responses to Criminal Justice System Intervention”. ^[51] The article is informative, but does not deal with the issues of social exclusion which are prevalent. Social exclusion was not a factor upon which the Applicant relied below nor upon which the Applicant relies on appeal.

     51. A Day et al, “Indigenous Family Violence: An Attempt to Understand the Problems and Inform Appropriate and Effective Responses to Criminal Justice System Intervention” (2012) 19:1 Psychiatry, Psychology and Law, 104-117; Appeal Book, p 241.

184. As earlier stated, the guideline in Henry sets a range of between 4 years and 5 months and 5 years and 7 months. While I consider that the offence in question puts the objective seriousness of the offence, without taking into account subjective circumstances, higher than the upper limit of that range, I consider that the starting point of the sentence should be less than twelve months above the range adumbrated but more than six months.

185. Taking into account the psychiatric disorder and PTSD, which is continuing, and affects both moral culpability and the more onerous nature of a prison sentence, together with the fact that the offence occurred during the course of a Depressive Episode, I would ameliorate the starting point of the sentence for the purpose of achieving the goals of sentencing.

186. Those goals are, as the learned sentencing judge noted, prescribed by s 3A of the Crimes (Sentencing Procedure) Act and were described by the High Court in Veen v The Queen (No 2). ^[52] Those purposes often point in different directions and include: the protection of society; deterrence, both general and specific; retribution and reform.

     52. Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

187. As the High Court there stated, purposes of sentencing overlap and none can be considered in isolation. Those purposes act as guideposts and the synthesising of the objective and subjective circumstances of the offence and the offender to achieve the purposes of sentencing is that which makes the exercise of the discretion so difficult. ^[53]

     53. Bugmy, supra, recited above.

188. There are a number of other matters to which I need to refer. First, I agree with the sentencing judge that the Applicant’s abstinence from alcohol in the community is impressive and allows a view that the prospects for rehabilitation are very good.

189. The Court has, for the purpose of resentencing, the Affidavits of the Applicant and his solicitor. The Applicant’s incarceration has been particularly onerous as a result of COVID-19 restrictions and isolation.

190. The Applicant has shown even greater reason for a positive view of his prospects of rehabilitation. He has no prison infringements; he is still alcohol free; he works in the prison and has obtained skills that will see him employable in the community; and he acts as a mentor and positive role model for younger prisoners of Aboriginal descent. I now consider his prospects excellent.

191. The Applicant is both Bundjalung and Gumbaynggirr. His father’s condition has deteriorated and suffers for a carer as both his sons are imprisoned.

192. I accept that the Court is entitled to take account of the injuries sustained by the victim, otherwise than by the knife, and the level of violence. This involves taking into account the whole of the circumstances of the offence and not sentencing for an offence that has not been charged. ^[54]

     54. The Queen v de Simoni (1981) 147 CLR 383; [1981] HCA 31.

193. The other aspect is that I do not consider the Applicant’s conduct as objectively more serious or that he was more involved as a consequence of the circumstance that he took the money from the till, while two other co-offenders were fighting the victim.

194. Taking into account both the objective seriousness, which I assess at above mid-range, and the subjective circumstances of the offender, I would commence with a starting point for the calculation of the sentence at imprisonment for 6 years and 6 months.

195. Notwithstanding the lack of a plea at committal, as a result of the offer to plead to that which was ultimately accepted by the Crown significantly earlier than committal, and taking account of the implied admissions associated with the acceptance of the victim’s statement even in the more serious offence proceedings, I would allow a discount of close to 25% for the utilitarian value of the plea and impose a head sentence of 5 years’ imprisonment.

196. I also find Special Circumstances on account of the need for extended period of supervised liberty in the community. This will ensure the best chance to effect complete rehabilitation.

197. Much of the severity of the head sentence imposed by her Honour is ameliorated by a much lower proportion for the non-parole period, fixed, as her Honour indicated. There is a point at which it is necessary to set a sentence that is appropriate for the criminality involved in the offence and below which would be inappropriate. I would set a non-parole period of 3 years. The sentence will commence on 28 September 2019.

198. For the foregoing reasons, I propose that the Court make the following orders:

1. Leave to appeal be granted;

2. Appeal be allowed;

3. The sentence imposed on the Applicant, Tyler Williams, by the District Court on 4 October 2019, be quashed and in lieu thereof the Applicant, Tyler Williams, be sentenced to a non-parole period of 3 years, commencing 28 September 2019 and concluding on 27 September 2022, with the remainder of term of 2 years, concluding 27 September 2024. The Applicant is first eligible for release on parole on 27 September 2022.

199. HAMILL J: I had had the advantage of reading the judgment of Rothman J in draft form. I agree with his Honour that grounds 2 and 3 have been established and that it is necessary to re-sentence the applicant. I also agree that grounds 1 and 4 must be rejected although, like Rothman J, I may have taken a different approach to that of the sentencing Judge in respect of an assessment of the applicant’s objective criminality and the extent of the discount for his early offer to plead guilty. I agree that it is unnecessary to resolve ground 5. Having considered the question of sentencing afresh, I agree with the sentence proposed by Rothman J. My reasons for these conclusions are encapsulated in the judgment of Rothman J.

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Endnotes

Amendments

09 February 2022 - Typographical error at [199].

Decision last updated: 09 February 2022